Donelien v Liberata UK Ltd, Court of Appeal - Civil Division, February 08, 2018, [2018] EWCA Civ 129

Issuing Organization:Civil Division
Actores:Donelien v Liberata UK Ltd
Resolution Date:February 08, 2018
 
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Case No: A2/2015/0190

Neutral Citation Number: [2018] EWCA Civ 129

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Langstaff J and lay members

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 08/02/2018

Before:

LORD JUSTICE UNDERHILL

LORD JUSTICE LINDBLOM

and

LORD JUSTICE SINGH

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Between:

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The Appellant in person

Mr Tom Brown (instructed by Pinsent Masons LLP) for the Respondent

Hearing date: 29th November 2017

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JudgmentLord Justice Underhill :

INTRODUCTION

  1. This is an appeal, with permission from Lewison LJ, against a decision of the Employment Appeal Tribunal, comprising Langstaff J, the then President, Mr David Bleiman and Mr Peter Gammon MBE, dated 16 December 2014. The EAT dismissed an appeal from an Employment Tribunal sitting at London South, chaired by Employment Judge Stacey, which dismissed the Appellant's claims of unfair dismissal, disability discrimination, ``whistleblower detriment'' and unlawful deduction of wages.

  2. The Appellant has appeared in person, as she did in the ET, though she was represented by counsel in the EAT. She made her submissions with conspicuous ability. The Respondent has been represented by Mr Tom Brown of counsel, who has appeared for it throughout.

  3. Although there were a number of issues before the ET we are now only concerned with a single point arising in connection with the Appellant's disability discrimination claim. It was her case that the Respondent failed to make reasonable adjustments in accordance with the duty then contained in section 4A of the Disability Discrimination Act 1995. It was decided at a preliminary hearing before Employment Judge Balogun, and is not now in issue, that the Appellant was in the last two months of her employment suffering from a disability: I return in due course to its nature. Section 4A (1) provided that an employer must take reasonable steps to prevent a disabled employee from being put at a disadvantage by a provision criterion or practice applied by it. But sub-section (3) (b) provided that:

    ``Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know-

    (a) ...

    (b) ... that [the disabled person concerned] has a disability and is likely to be affected in the way mentioned in subsection (1).''

    I will use the shorthand ``constructive knowledge'' for knowledge that the employer could reasonably be expected to have had. The Appellant's claim under section 4A failed because the ET held that the Respondent did not at any material time know, nor could it reasonably have been expected to know, that she was disabled. The only issue on this appeal is whether that was a finding that was open to it on the evidence.

  4. It is convenient at this stage to refer to the definition of disability in the 1995 Act. Section 1 (1) provided that:

    ``Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act ... if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.''

    As regards Schedule 1, I need only refer to paragraph 2 (1), which read:

    ``The effect of an impairment is a long-term effect if--

    (a) if has lasted at least 12 months;

    (b) the period for which it lasts is likely to be at least 12 months; or

    (c) it is likely to last for the rest of the life of the person affected.''

  5. Accordingly, the knowledge in question for the purpose of section 4A (3) is knowledge that the employee had an impairment with those characteristics. The position is summarised by Rimer LJ in Gallop v Newport City Council [2013] EWCA Civ 1583, [2014] IRLR 211. At para. 36 of his judgment (p. 217), he says:

    ``[Counsel] were agreed as to the law, namely that (i) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and (ii) that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in section 1(1) of the DDA. Those facts can be regarded as having three elements to them, namely (a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day duties; and whether those elements are satisfied in any case depends also on the clarification as to their sense provided by Schedule 1. Counsel were further agreed that, provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a 'disabled person' as defined in section 1(2). I agree with counsel that this is the correct legal position.''

    THE FACTS

  6. The issue being limited in that way, I need only set out the facts as found by the ET relevant to the issue of constructive knowledge. I emphasise that I am not seeking to give a comprehensive summary.

  7. The Respondent is a large business providing outsourcing and business services. The Appellant was first employed by it in 1999 in its then incarnation as ``CSL'', working in a team specialising in housing benefit and council tax. From 2004 she was a ``Court Officer'', preparing and presenting cases on those matters for the London Borough of Southwark. She was able and good at her job. She was a union representative, and active in various matters in that capacity.

  8. From the second half of 2008 onwards the Appellant began to arrive at work late or leave early or take whole days off work. She told her managers that she was suffering from low energy levels and tiredness in the morning and that the problem was related to high blood pressure. She also suffered dizzy spells and breathing problems. She sometimes took time off without any prior notice. After a period of sickness in November she told her manager at her return to work interview that her illness was work-related: the quantity and pace of work was too high, there was a shortage of resources and the office was too stuffy. She said that she felt exposed to long-term stress and felt burnt out. Her sick notes from the period mostly refer either to hypertension or to viral illness.

  9. Following a further absence her GP wrote to the Respondent on 15 January 2009. His letter reads:

    ``This lady is a patient registered at our Surgery. I have been treating her since September 2008 for uncontrolled hypertension, stress, low energy levels and tiredness. I initially issued medical certificates for a few weeks off work, because in my opinion she was not fit to attend her regular duties.

    Her condition improved and she felt that she would like to return to work initially on a phased plan which I supported. I have initiated pharmacological treatment for her hypertension but her blood pressure remains inadequately controlled. Her treatment is ongoing and I continue to see her at regular intervals to assess her treatment.

    I would be most grateful if you could support her return to work in phases. She would like to start off working 3 days per week with immediate effect until her condition responds to treatment.''

  10. The Respondent agreed to a phased return to work, with the Appellant not working on Mondays or Fridays. However, her health problems continued. In February 2009 the Respondent suggested a referral to an outside occupational health specialist, but the Appellant was uncooperative, saying that her GP's letter told the Respondent all it needed to know. An absence interview planned for 5 March 2009 could not go ahead because the Appellant was unwell.

  11. There was a further period of absence between 6 April and 17 April 2009. The Appellant's GP wrote on 20 April saying that she had presented with a history of a stomach upset which, although it had settled, was ``followed by a feeling of generally unwell along with ... right wrist pain''. The letter explained that the GP had found no underlying wrist problem and had reassured the Appellant and told her that she could go back to work.

  12. When the postponed absence interview was finally held on 14 May 2009, with the Appellant's manager, Ms Banjo, and the responsible HR Manager, Ms Prendergast, the ET found that the Appellant was uncooperative and somewhat confrontational. It said, at para. 44 of the Reasons:

    ``She refused to confirm the accuracy of the Respondent's records of her absence without either explanation or any suggestion of what she considered to be accurate. She referred, on a number of occasions, to her desire to speak to the Chief Executive Officer. The Panel found that she used this as a threat. She considered that it had some leverage and traction with Ms Banjo and Ms Prendergast, although it did not.''

    (The request to see the CEO had its origins in an earlier episode...

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